Justice Legislation (COVID-19 Emergency Response Documents ...

Queensland

COVID-19 Emergency Response Act 2020Oaths Act 1867Powers of Attorney Act 1998Property Law Act 1974Succession Act 1981

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020

Current as at 1 July 2021

Repeal/Expiry InformationThis legislation expires on the COVID-19 legislation expiry day—seesection 27.

© State of Queensland 2021

This work is licensed under a Creative Commons Attribution 4.0 International License.

https://www.legislation.qld.gov.au/copyright

Queensland


Contents

Page

Part 1 Preliminary

1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2 Declaration that regulation is made under COVID-19 Emergency Response Act 2020, ss 8 and 9 . . . . . . . . . . . . . . . . . . . . . . . . . 5

3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

4 References to witnesses, signatories and substitute signatories 5

5 Special witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Part 3 Enduring documents

9 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11 Advance health directive certificate may be signed by particular nurses 7

Part 3A Affidavits

12A Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

12B Presence by audio visual link . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

12C Affidavit may be made in form of electronic document and electronically signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

12D Dis-application of Oaths Act 1867, s 33 . . . . . . . . . . . . . . . . . . . 9

12E Admission of affidavit not complying with requirements . . . . . . . 9

Part 3B Declarations

12F Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

12G Presence by audio visual link . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

12H Declaration may be made in form of electronic document and electronically signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

12I Dis-application of Oaths Act 1867, s 33 . . . . . . . . . . . . . . . . . . . 10

12J Who may witness declarations other than by audio visual link . . 10

Part 3C Oaths and affirmations

Contents


12K Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

12L Presence by audio visual link . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Part 3D Deeds

Division 1 General

12M Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

12N How deed is made generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

12O Deed may be made in form of electronic document and electronically signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Division 2 Signing of instrument to have effect as a deed

12P Signing by individual generally . . . . . . . . . . . . . . . . . . . . . . . . . . 13

12Q Signing by corporation generally . . . . . . . . . . . . . . . . . . . . . . . . . 13

12R Signing counterpart or true copy . . . . . . . . . . . . . . . . . . . . . . . . . 14

12S No witness required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Division 3 Other provision

12T Deposit of deed in land registry . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Part 3E General powers of attorney

12U Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

12V No witness required for corporations . . . . . . . . . . . . . . . . . . . . . . 16

12W Presence by audio visual link for individuals . . . . . . . . . . . . . . . . 16

12X No sealing required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

12Y General power of attorney may be made in form of electronic document and electronically signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

12Z Signing by corporation generally . . . . . . . . . . . . . . . . . . . . . . . . . 17

12ZA Signing counterpart or true copy . . . . . . . . . . . . . . . . . . . . . . . . . 18

12ZB Lodgement or deposit of general power of attorney in land registry 18

Part 3F Particular mortgages

12ZC Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

12ZD Mortgages lodged electronically . . . . . . . . . . . . . . . . . . . . . . . . . 20

Part 4 Signing or witnessing documents by audio visual link

Division 1 Requirements about direction given to substitute signatory

13 Persons who may be directed to sign . . . . . . . . . . . . . . . . . . . . . 21

14 Signing in physical presence requires special witness . . . . . . . . 22

15 Witness must observe direction and verify particular matters . . . 22

Division 2 Requirements about witnessing documents by audio visual link

16 Witnesses must be or include special witness . . . . . . . . . . . . . . 23

17 General requirements for witnessing documents . . . . . . . . . . . . 23

Page 2

Contents

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation2020

18 Witness must verify particular matters . . . . . . . . . . . . . . . . . . . . 24

19 Confirmation of signed document by witness . . . . . . . . . . . . . . . 24

20 Action after witness confirms document . . . . . . . . . . . . . . . . . . . 25

Division 3 Other provisions

21 Certificate by special witness . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

21A Jurat of affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

21B Statement in declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

22 When document starts to be effective . . . . . . . . . . . . . . . . . . . . . 29

23 Presumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

24 Official and originating versions of document . . . . . . . . . . . . . . . 30

25 Lodgement or deposit of document in land registry . . . . . . . . . . 31

25A Affidavits or declarations made using counterparts . . . . . . . . . . . 31

26 Audio visual recording of signing or witnessing of document . . . 31

Part 5 Expiry of regulation

27 Expiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Schedule 1 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Page 3

[s 1]


Part 1 Preliminary


Part 1 Preliminary

1 Short title

This regulation may be cited as the Justice Legislation(COVID-19 Emergency Response—Documents and Oaths)Regulation 2020.

2 Declaration that regulation is made under COVID-19 Emergency Response Act 2020, ss 8 and 9

This regulation is made under the COVID-19 EmergencyResponse Act 2020, sections 8 and 9.

3 Dictionary

The dictionary in schedule 1 defines particular words used inthis regulation.

4 References to witnesses, signatories and substitute signatories

(1) In this regulation—

(a) a reference to a witness in relation to a document is areference to a person witnessing the making of thedocument; and

(b) a reference to a signatory in relation to a document is areference to the person for whom the document is made,whether signed by the person or by a substitutesignatory at the direction of the person; and

Current as at 1 July 2021 Page 5

Authorised by the Parliamentary Counsel

[s 5]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 1 Preliminary

(c) a reference to a substitute signatory in relation to adocument is a reference to a person signing thedocument at the direction of the signatory.

(2) Also, for an affidavit or declaration—

(a) the witness is the person who administers an oath oraffirmation to the person making the affidavit ordeclaration before the affidavit or declaration is made;and

(b) the signatory is the person who makes or gives an oathor affirmation for the person’s affidavit or declarationbefore the affidavit or declaration is made.

5 Special witnesses

(1) A special witness, for a document, is a person who is—

(a) an Australian legal practitioner; or

(b) a justice or commissioner for declarations approved bythe chief executive under subsection (2); or

(c) a justice or commissioner for declarations—

(i) employed by the law practice that prepared thedocument; and

(ii) who witnesses documents in the course of thatemployment; or

(d) a notary public; or

(e) a person mentioned in subsection (3) for the document.Note—

See sections 14 and 16 for further provision about special witnesses.

(2) The chief executive may approve a justice or commissionerfor declarations to be a special witness for this regulation ifthe chief executive is satisfied the justice or commissioner fordeclarations is an appropriate person for witnessingdocuments under this regulation.

(3) For subsection (1)(e), a person is also a special witness for adocument if the document is prepared by the public trustee

Page 6 Current as at 1 July 2021


[s 9]



and the person is a justice or commissioner for declarationswho is an employee of the public trustee.

(4) In this section—

law practice see the Legal Profession Act 2007, schedule 2.


9 Application of part

(1) This part provides for modified requirements or arrangements,under the Powers of Attorney Act 1998 or another law, formaking, signing and witnessing enduring documents, ordocuments that revoke all or part of an enduring document.

(2) In this part—

(a) a reference to an enduring document is taken to includea reference to a document revoking all or part of anenduring document; and

(b) a reference to making, signing or witnessing anenduring document is taken to include a reference tomaking, signing or witnessing of a certificate formingpart of the enduring document.

11 Advance health directive certificate may be signed by particular nurses

(1) The Powers of Attorney Act 1998, section 44(6) and (7) applyas if a reference to a doctor included a reference to a nursepractitioner.


nurse practitioner means a person registered under the HealthPractitioner Regulation National Law to practise in thenursing profession, other than as a student, whose registrationis endorsed as being qualified to practise as a nursepractitioner.



[s 12A]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 3A Affidavits

Part 3A Affidavits

12A Application of part

This part provides for modified requirements or arrangementsfor making, signing and witnessing affidavits under the OathsAct 1867 or another law.

12B Presence by audio visual link

A requirement under the Oaths Act 1867 or another law forthe presence of a witness, signatory, substitute signatory orother person in relation to the making, signing or witnessingof an affidavit is taken to be satisfied if—

(a) the witness, signatory, substitute signatory or otherperson is present by audio visual link; and

(b) the signatory’s oath or affirmation for the affidavit isadministered by a special witness; and

(c) the making, signing or witnessing of the affidavit iscarried out in accordance with part 4.

12C Affidavit may be made in form of electronic document and electronically signed

(1) An affidavit may be made in the form of an electronicdocument, and may be electronically signed, if it is made,signed and witnessed in accordance with part 4.

(2) An affidavit may be made in the form of an electronicdocument by or for a person even without consent to themaking of it in that form from a witness or any other person.

(3) An affidavit may be electronically signed by a person evenwithout consent to the signing in that way from any otherperson who is to sign the affidavit.



[s 12D]



12D Dis-application of Oaths Act 1867, s 33

The Oaths Act 1867, section 33 does not apply in relation toan affidavit made, signed or witnessed in accordance with thisregulation.

12E Admission of affidavit not complying with requirements

(1) This section applies in relation to a purported affidavit thatdoes not comply with the requirements under the Oaths Act1867 or another law, as modified by this regulation, if—

(a) a court is satisfied compliance with the requirements inrelation to the purported affidavit was not reasonablypracticable; and

(b) the purported affidavit states the reasons whycompliance with the requirements was not reasonablypracticable.

(2) The court may admit the purported affidavit in evidence in aproceeding if the court considers it is desirable in the interestsof justice.


12F Application of part

This part provides for modified requirements or arrangementsfor making, signing and witnessing declarations under theOaths Act 1867 or another law.

12G Presence by audio visual link

A requirement under the Oaths Act 1867 or another law forthe presence of a witness, signatory, substitute signatory orother person in relation to the making, signing or witnessingof a declaration is taken to be satisfied if—




[s 12H]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 3B Declarations

(b) the signatory’s oath or affirmation for the declaration isadministered by a special witness; and

(c) the making, signing or witnessing of the declaration iscarried out in accordance with part 4.

12H Declaration may be made in form of electronic document and electronically signed

(1) A declaration may be made in the form of an electronicdocument, and may be electronically signed, if it is made,signed and witnessed in accordance with part 4.

(2) A declaration may be made in the form of an electronicdocument by or for a person even without consent to themaking of it in that form from a witness or any other person.

(3) A declaration may be electronically signed by a person evenwithout consent to the signing in that way from any otherperson who is to sign the declaration.

12I Dis-application of Oaths Act 1867, s 33

The Oaths Act 1867, section 33 does not apply in relation to adeclaration made, signed or witnessed in accordance with thisregulation.

12J Who may witness declarations other than by audio visual link

(1) This section applies in relation to a declaration that is notwitnessed by audio visual link.

(2) Despite the Oaths Act 1867, section 13(1), a declaration maybe taken by a person prescribed under the StatutoryDeclarations Regulations 2018 (Cwlth), section 7.



[s 12K]




12K Application of part

(1) This part provides for modified requirements or arrangementsfor oaths or affirmations under the Oaths Act 1867 or anotherlaw.

(2) This part applies to an oath or affirmation, however described,administered or made anywhere, including, for example, inopen court.

(3) However, this part does not apply to—

(a) an oath or affirmation administered or made in relationto an affidavit under part 3A or a declaration underpart 3B; or

(b) an oath of allegiance or oath of office under the OathsAct 1867, part 2.

12L Presence by audio visual link

(1) A requirement under the Oaths Act 1867 or another law forthe presence of an authorised person in relation to a person’soath or affirmation is taken to be satisfied if the authorisedperson is present by audio visual link.


authorised person, in relation to a person’s oath oraffirmation, means a person who is authorised by law toadminister the person’s oath or affirmation.



[s 12M]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 3D Deeds

Part 3D Deeds

Division 1 General

12M Application of part

(1) This part provides for modified requirements or arrangementsfor making a deed, or an instrument having effect as a deed,under the Property Law Act 1974 or a common law rule.

(2) This part does not apply to enduring documents or generalpowers of attorney.

12N How deed is made generally

(1) An instrument takes effect as a deed if the instrument—

(a) is in writing; and

(b) contains a conspicuous statement that the instrument is adeed; and

(c) is signed in accordance with this part; and

(d) is delivered in accordance with the Property Law Act1974, section 47.

(2) An instrument takes effect as a deed under subsection (1) evenif—

(a) it is not written on paper or parchment; or

(b) it is not an indenture or stated to be an indenture; or

(c) it is not sealed or stated to be sealed.

12O Deed may be made in form of electronic document and electronically signed

(1) An instrument that is to have effect as a deed may be made inthe form of an electronic document and may be electronicallysigned.



[s 12P]


Part 3D Deeds

(2) An instrument that is to have effect as a deed may be made inthe form of an electronic document by or for a person evenwithout consent to the making of it in that form from anothersignatory or any other person.

(3) An instrument that is to have effect as a deed may beelectronically signed by a person even without consent to thesigning in that way from any other person who is to sign thedeed.

Division 2 Signing of instrument to have effect as a deed

12P Signing by individual generally

An instrument that is to have effect as a deed for an individualmay be signed by the individual personally or by theindividual’s agent, whether or not the agent is appointed underseal.

12Q Signing by corporation generally

(1) An instrument that is to have effect as a deed for a corporationmay be signed by—

(a) 2 directors of the corporation; or

(b) 1 director and 1 secretary of the corporation; or

(c) for a corporation that has only 1 director who is also theonly secretary of the corporation—that director; or

(d) a lawfully authorised agent or attorney of thecorporation, whether or not the agent or attorney isappointed under seal.

(2) Also, for a statutory corporation, the instrument may besigned by a person, or in a way, authorised by the Act underwhich the corporation is established, incorporated orregistered.



[s 12R]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 3D Deeds

(3) Further, for a corporation that is not incorporated under anAustralian law, the instrument may be signed by a person, orin a way, authorised by the law of the place in which thecorporation is incorporated.

(4) An instrument that is to have effect as a deed for a corporationmay be signed in accordance with this section whether or notthe seal of the corporation is used.

(5) An instrument signed for a corporation by an agent or attorneyunder subsection (1)(d) has the same effect as an instrumentsigned for a corporation under subsection (1)(a), (b) or (c).

(6) This section does not limit the ways in which an instrumentthat is to have effect as a deed for a corporation may be signedfor the corporation.


attorney, for a corporation, means an attorney for thecorporation under—

(a) a deed; or

(b) a general power of attorney.

12R Signing counterpart or true copy

(1) An instrument that is to have effect as a deed for an individualor a corporation may be signed by or for the individual orcorporation by signing a counterpart or true copy of theinstrument.

(2) For subsection (1), the counterpart or true copy signed by aperson need not include the signature of any other person whois to sign the instrument.Example—

If an instrument is signed for a corporation by 1 director and 1secretary, the director may sign 1 counterpart and the secretary maysign another counterpart. The counterpart signed by each person doesnot need to include the signature of the other person.

(3) Also, for subsection (1), if the counterpart or true copy iselectronically signed by a person, the counterpart or true copy



[s 12S]


Part 3D Deeds

need not include any material included in the instrument aboutthe method used for electronically signing the instrument.

12S No witness required

An instrument that is to have effect as a deed may be signed inaccordance with this division whether or not in the presenceof a witness.

Division 3 Other provision

12T Deposit of deed in land registry

(1) This section applies to a deed made under this part that isproposed to be deposited in the land registry for either of thefollowing purposes—

(a) in support of another instrument lodged or deposited inthe land registry;

(b) for registration, enrolment or recording under theProperty Law Act 1974, section 241(1).

(2) If the deed is made in counterparts, each counterpart must bedeposited in the land registry for the purpose.

(3) If the deed or a counterpart of the deed is in the form of anelectronic document, a printed copy of the deed or counterpartcertified in accordance with subsection (4) must be depositedin the land registry for the purpose.

(4) For subsection (3), the printed copy must be certified as a truecopy of the original deed or counterpart—

(a) on the last page of the printed copy; and

(b) by 1 of the following persons—

(i) 1 of the signatories;

(ii) a lawyer;

(iii) a justice;



[s 12U]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 3E General powers of attorney

(iv) a commissioner for declarations;

(v) a notary public;

(vi) a trustee company under the Trustee CompaniesAct 1968;

(vii) a stockbroker.


12U Application of part

(1) This part provides for modified requirements or arrangements,under the Powers of Attorney Act 1998 or another law, formaking a general power of attorney, or a document revoking ageneral power of attorney.

(2) A reference in this part to a general power of attorney is takento include a reference to a document revoking a general powerof attorney.

12V No witness required for corporations

A general power of attorney for a corporation may be madewhether or not in the presence of a witness.

12W Presence by audio visual link for individuals

A requirement under the Powers of Attorney Act 1998 oranother law for the presence of a witness, signatory, substitutesignatory or other person in relation to the making, signing orwitnessing of a general power of attorney for an individual istaken to be satisfied if—


(b) the making, signing or witnessing is carried out inaccordance with part 4.



[s 12X]



12X No sealing required

A general power of attorney may be made even if it is notsealed or stated to be sealed.

12Y General power of attorney may be made in form of electronic document and electronically signed

(1) A general power of attorney may be made in the form of anelectronic document and may be electronically signed.

(2) A general power of attorney may be made in the form of anelectronic document by or for a person even without consentto the making of it in that form from a witness or any otherperson.

(3) A general power of attorney may be electronically signed by aperson even without consent to the signing in that way fromany other person who is to sign the general power of attorney.

12Z Signing by corporation generally

(1) A general power of attorney for a corporation may be signedby—

(a) 2 directors of the corporation; or

(b) 1 director and 1 secretary of the corporation; or

(c) for a corporation that has only 1 director who is also theonly secretary of the corporation—that director; or

(d) a lawfully authorised agent of the corporation, whetheror not the agent is appointed under seal.

(2) Also, for a statutory corporation, the general power ofattorney may be signed by a person, or in a way, authorised bythe Act under which the corporation is established,incorporated or registered.

(3) Further, for a corporation that is not incorporated under anAustralian law, the general power of attorney may be signedby a person, or in a way, authorised by the law of the place inwhich the corporation is incorporated.



[s 12ZA]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 3E General powers of attorney

(4) A general power of attorney may be signed in accordancewith this section whether or not the seal of the corporation isused.

(5) An instrument signed for a corporation by an agent undersubsection (1)(d) has the same effect as an instrument signedfor a corporation under subsection (1)(a), (b) or (c).

(6) This section does not limit the ways in which a general powerof attorney for a corporation may be signed for thecorporation.

12ZA Signing counterpart or true copy

(1) This section applies if 2 or more persons are to sign a generalpower of attorney for a corporation.

(2) A person signing the general power of attorney for thecorporation may sign a counterpart or true copy of the generalpower of attorney.

(3) For subsection (2), the counterpart or true copy signed by aperson need not include the signature of any other person whois to sign the general power of attorney.

(4) Also, for subsection (2), if the counterpart or true copy iselectronically signed by a person, the counterpart or true copyneed not include any material included in the general power ofattorney about the method used for electronically signing thegeneral power of attorney.

12ZB Lodgement or deposit of general power of attorney in land registry

(1) This section applies to a general power of attorney madeunder this part that is proposed to be lodged or deposited inthe land registry for a purpose.

(2) If the general power of attorney is made in counterparts, eachcounterpart must be lodged or deposited in the land registryfor the purpose.



[s 12ZB]



(3) If the general power of attorney or a counterpart of the generalpower of attorney is in the form of an electronic document, aprinted copy of the general power of attorney or counterpartcertified in accordance with subsection (4) must be lodged ordeposited in the land registry for the purpose.

(4) For subsection (3), the printed copy must be certified as a truecopy of the original general power of attorney orcounterpart—

(a) on the last page of the printed copy; and

(b) by 1 of the following persons—

(i) 1 of the signatories;

(ii) a lawyer;

(iii) a justice;

(iv) a commissioner for declarations;

(v) a notary public;

(vi) a trustee company under the Trustee CompaniesAct 1968;

(vii) a stockbroker.

(5) Subsection (6) applies if—

(a) a printed copy of the general power of attorney orcounterpart is lodged or deposited under subsection (3);and

(b) the principal signed the general power of attorney inpaper form (the principal’s original document).

(6) The registrar of titles may require the principal’s originaldocument to be given to the registrar for lodgement ordepositing with the printed copy lodged or deposited undersubsection (3).



[s 12ZC]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 3F Particular mortgages

Part 3F Particular mortgages

12ZC Application of part

(1) This part provides for modified requirements or arrangementsfor the making of particular mortgages under the PropertyLaw Act 1974 or another law.

(2) However, this part does not apply in relation to a mortgagethat is an instrument to which part 3D applies.

12ZD Mortgages lodged electronically

(1) This section applies in relation to a mortgage if—

(a) the mortgage is lodged under the ElectronicConveyancing National Law (Queensland), section 7;and

(b) the mortgagee holds a document that grants a mortgageby the mortgagor that—

(i) is on the same terms and conditions as the lodgedmortgage; and

(ii) complies with the Property Law Act 1974,section 11.

(2) If the mortgage is required to be given, produced or used forany purpose, the document mentioned in subsection (1)(b)may be—

(a) given, produced or used for the purpose; and

(b) relied on as evidence of the mortgage.

(3) Subsection (2) applies regardless of whether the documentmentioned in subsection (1)(b)—

(a) was signed by or for the mortgagor in the presence of awitness; or

(b) was electronically signed by or for the mortgagor.



[s 13]




Division 1 Requirements about direction given to substitute signatory

13 Persons who may be directed to sign

(1) This section applies in relation to a substitute signatory who—

(a) is directed by a signatory in the signatory’s physicalpresence to sign a document for the signatory that is tobe witnessed by audio visual link; or

(b) is directed by audio visual link to sign a document for asignatory.

(2) The following persons are excluded from signing a documentas a substitute signatory—

(a) a person excluded under an Act or other law fromsigning the document as a signatory;

(b) without limiting paragraph (a)—

(i) a person witnessing the document; or

(ii) for an affidavit or a declaration to be used in aproceeding by or for a party—a person who isanother party to the proceeding or a relation of aperson who is another party to the proceeding.

(3) Also, a person may be directed by audio visual link to sign adocument for a signatory only if the person is an Australianlegal practitioner or an employee of the public trustee.


relation, of a person, see the Powers of Attorney Act 1998,schedule 3.



[s 14]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 4 Signing or witnessing documents by audio visual link

14 Signing in physical presence requires special witness

(1) This section applies in relation to a substitute signatorydirected by audio visual link to sign a document for asignatory if the substitute signatory is to sign the document inthe physical presence of a witness.

(2) The signing of the document by the substitute signatory mustbe witnessed by a special witness.

(3) This section does not—

(a) affect any requirement under an Act or other law aboutthe number of witnesses required or permitted towitness a document; or

(b) authorise or permit a person who is excluded fromwitnessing a document under an Act or other law towitness the document.

Note—

See section 16 in relation to the signing of a document by a substitutesignatory to be witnessed by audio visual link.

15 Witness must observe direction and verify particular matters

(1) This section applies if a substitute signatory is directed by thesignatory by audio visual link to sign a document.

(2) Each witness for the signing of the document by the substitutesignatory must—

(a) observe the signatory direct the substitute signatory tosign the document; and

(b) be satisfied that the substitute signatory is permittedunder section 13 to be a substitute signatory for thedocument; and

(c) take reasonable steps to verify the identity of thesignatory; and

(d) be satisfied that the signatory is freely and voluntarilydirecting the substitute signatory to sign the document.



[s 16]



Division 2 Requirements about witnessing documents by audio visual link

16 Witnesses must be or include special witness

(1) A document may be witnessed by audio visual link only if thewitness is a special witness for the document.

(2) This section does not—

(a) affect any requirement under an Act or other law aboutthe number of witnesses required or permitted towitness a document; or

(b) authorise or permit a person who is excluded fromwitnessing a document under an Act or other law towitness the document.

17 General requirements for witnessing documents

(1) A document may be witnessed by audio visual link only if—

(a) if applicable, the witness observes the signatory directthe substitute signatory to sign the document; and

(b) the audio visual link enables the witness to be satisfied,by the sounds and images made by the link, that thesignatory or substitute signatory is signing thedocument; and

(c) the witness forms the satisfaction under paragraph (b) inreal time; and

(d) the signatory or substitute signatory signs each page ofthe document; and

(e) the witness is satisfied that the signatory is freely andvoluntarily signing the document or directing thesubstitute signatory to sign the document.

(2) Subsection (1)(d) does not apply to an affidavit or adeclaration.



[s 18]


18 Witness must verify particular matters

A person who witnesses a document by audio visual link musttake reasonable steps to verify each of the following matters—

(a) the identity of the signatory;

(b) that the name of the signatory matches the name of thesignatory written on or in the document.

19 Confirmation of signed document by witness

(1) A person who witnesses a document by audio visual link mayconfirm a document as the document witnessed by the persononly if the person is satisfied the document—

(a) is the document signed by the signatory or substitutesignatory; or

(b) is a true copy of the document signed by the signatory orsubstitute signatory; orExamples for paragraph (b)—

• a scanned copy of a signed document sent electronically tothe witness

• a hard copy of a signed electronic document printed by thewitness

(c) if the document is an affidavit or a declaration madeusing counterparts—is a counterpart for the documentsigned by the signatory or substitute signatory.Note—

Affidavits and declarations in the form of electronic documentsmay be electronically signed—see sections 12C (for affidavits)and 12H (for declarations).

(2) The person must confirm the document—

(a) as soon as practicable after witnessing it, which may ormay not be the day on which the document is witnessed;and

(b) by signing each page of the document.



[s 20]



(3) Subsection (2)(b) does not apply to an affidavit or adeclaration.

(4) If a justice or commissioner for declarations confirms anelectronic document, the justice or commissioner fordeclarations is not required to insert on the document theimprint of a seal of office issued to the person under theJustices of the Peace and Commissioners for Declarations Act1991.

20 Action after witness confirms document

(1) After a witness confirms a document witnessed by the witnessby audio visual link, the witness must give the document or atrue copy of the document to the relevant person for thedocument.Examples of giving a true copy of a document to a person—

• scanning the document and emailing the scanned copy to theperson

• giving a hard copy printout of the document to the person

(2) If a certificate under section 21 has been signed for thedocument, the certificate or a true copy of the certificate mustaccompany the document or a true copy of the documentgiven under subsection (1).Note—

The certificate must be kept with the official version of the documentunder section 24(4A).


give includes—

(a) give by electronic means; and

(b) give by allowing online computer access. Example for paragraph (b)—

allowing a person to access and download a document from anonline file-sharing website

relevant person means—



[s 21]


(a) for an affidavit or declaration—the person making theaffidavit or declaration or a person to whom that persondirects the affidavit or declaration be given; or

(b) for a general power of attorney or a document revokinga general power of attorney—the principal for thegeneral power of attorney or a person to whom theprincipal directs the general power of attorney be given.

Division 3 Other provisions

21 Certificate by special witness

(1) This section applies to a special witness who—

(a) witnesses, in the special witness’ physical presence, asubstitute signatory sign a document after the directionto sign the document is given by audio visual link; or

(b) witnesses a signatory or substitute signatory sign adocument by audio visual link.

(1A) However, this section does not apply in relation to an affidavitor a declaration.

(2) The special witness must sign a certificate stating—

(a) that the document was signed and witnessed during therelevant period; and

(b) that the document was signed and witnessed inaccordance with this regulation; and

(c) the steps the witness took to verify the identity of thesignatory; and

(d) if a substitute signatory signed the document—

(i) the identity of the substitute signatory; and

(ii) a description of the direction given by thesignatory to the substitute signatory; and

(e) if a substitute signatory was directed by the signatory byaudio visual link to sign the document—the grounds on



[s 21A]



which the witness is satisfied the substitute signatory ispermitted under section 13 to be a substitute signatoryfor the document; and

(f) the process followed for signing and witnessing thedocument; and

(g) that the special witness is a special witness; and

(h) whether an audio visual recording was made undersection 26 of the signing or witnessing of the document;and

(i) any other matters the special witness considers relevantto the signing or witnessing of the document.

Note—

The certificate or a true copy of the certificate must accompany thedocument or a true copy of the document given under section 20—seesection 20(2).


relevant period means the period starting on thecommencement and ending when the COVID-19 emergencyperiod ends.

21A Jurat of affidavit

(1) This section applies in relation to an affidavit made, signed orwitnessed under the modified requirements or arrangementsunder this regulation.

(2) The signatory must ensure the affidavit’s jurat states thefollowing matters—

(a) if applicable, that the affidavit was made in the form ofan electronic document;

(b) if applicable, that the affidavit was electronically signedby the signatory or substitute signatory;

(c) that the affidavit was made, signed and witnessed inaccordance with this regulation;

(d) that either—



[s 21B]


(i) the contents of the affidavit are true; or

(ii) if the contents of the affidavit are stated on thebasis of information and belief—those contents aretrue to the best of the knowledge of the personmaking the statement;

(e) that the signatory understands that a person whoprovides a false matter in the affidavit commits anoffence.Example of offence—

perjury under the Criminal Code, section 123

21B Statement in declaration

(1) This section applies in relation to a declaration made, signedor witnessed under the modified requirements orarrangements under this regulation.

(2) The signatory must ensure the declaration states the followingmatters—

(a) that the declaration was made, signed and witnessed inaccordance with this regulation;

(b) that either—

(i) the contents of the declaration are true; or

(ii) if the contents of the declaration are stated on thebasis of information and belief—those contents aretrue to the best of the knowledge of the personmaking the statement;

(c) that the signatory understands that a person whoprovides a false matter in the declaration commits anoffence.Example of offence—

perjury under the Criminal Code, section 123



[s 22]



22 When document starts to be effective

(1) A document made, signed and witnessed in accordance withthis regulation starts to be effective when the signatory orsubstitute signatory signs the document.

(2) However, an enduring document starts to be effective inrelation to an attorney only if and when the attorney acceptsthe appointment by signing either the official version or theoriginating version of the document.

(3) Subsections (1) and (2) apply even if—

(a) the witness confirms the document on a later day thanthe day the signatory or substitute signatory signs thedocument; and

(b) for an enduring document under which an attorney isappointed—the witness confirms the document on alater day than the day the attorney accepts theappointment.

23 Presumptions

In a proceeding, the following must be presumed in relation toa document made, signed or witnessed in accordance with thisregulation, unless a party to the proceeding, by reasonablenotice, requires proof of it—

(a) the validity of the document, to the extent it is made,signed or witnessed in accordance with this regulation;

(b) the eligibility of a witness to witness the document;

(c) the eligibility of a substitute signatory to sign thedocument at the direction of the signatory;

(d) that a signature on or in the document purporting to bethe signature of a witness, signatory or substitutesignatory for the document is the signature of thewitness, signatory or substitute signatory;

(e) that a matter stated in a certificate purporting to besigned by a special witness under section 21 for thedocument is true and correct.



[s 24]


24 Official and originating versions of document

(1) This section applies to a document, or a true copy of adocument, that is given to a relevant person for the documentunder section 20(1).

(1A) However, this section does not apply to an affidavit ordeclaration that is made using counterparts.

(2) If the document or true copy is given in paper form, thedocument or true copy is the official version of the document.

(3) If the document or true copy is given electronically, a print outof the document or true copy is the official version of thedocument.

(4) If the official version of the document is not the version of thedocument that was physically signed by the signatory orsubstitute signatory (the originating version), the originatingversion must be kept with the official version.

(4A) Also, a certificate signed under section 21 must be kept withthe official version.

(5) If a document made, signed or witnessed in accordance withthis regulation is required to be given, produced or used forany purpose, the official version of the document may be—


(b) relied on as evidence of the document.Example for subsection (5)—

The official version of a general power of attorney may be given to abank or other entity, and relied on by the bank or other entity, asevidence of the general power of attorney.

(6) However, nothing in subsection (5) makes an enduringdocument effective in relation to an attorney.Note—

See section 22(2) for when an enduring document starts to be effectivein relation to an attorney.

(7) Also, subsection (5) does not limit the power of a court torequire production of the originating version of the documentin a proceeding.



[s 25]



25 Lodgement or deposit of document in land registry

(1) This section applies if an official version of a document islodged or deposited in the land registry.

(2) The certificate signed under section 21 for the document mustbe lodged or deposited with the official version.

(3) The registrar of titles may require the originating version ofthe document to be given to the registrar for lodgement ordepositing with the official version.

25A Affidavits or declarations made using counterparts

(1) This section applies to an affidavit or declaration that is madeusing counterparts.

(2) The counterpart confirmed by the witness for the affidavit ordeclaration must be kept with the counterpart signed by or forthe signatory for the affidavit or declaration.

(3) The counterparts mentioned in subsection (2) togetherconstitute the affidavit or declaration.

(4) If an affidavit or declaration made using counterparts isrequired to be given, produced or used for any purpose, thecounterparts constituting the affidavit or declaration may be—


(b) relied on as evidence of the affidavit or declaration.

26 Audio visual recording of signing or witnessing of document

(1) An audio visual recording of the signing or witnessing of adocument may only be made with the consent of thesignatory, witnesses and, if applicable, the substitutesignatory.

(2) Whether an audio visual recording of the signing orwitnessing of the document is or is not made undersubsection (1) does not affect the validity of the document orthe signing or witnessing of the document.



[s 27]

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020Part 5 Expiry of regulation

Part 5 Expiry of regulation

27 Expiry

This regulation expires on the COVID-19 legislation expiryday.



Schedule 1


Schedule 1 Dictionary

section 3

administer, in relation to an oath or affirmation, includes takeand receive.

audio visual link means facilities that enable reasonablycontemporaneous and continuous audio and visualcommunication between persons at different places andincludes videoconferencing.

Australian legal practitioner see the Legal Profession Act2007, section 6(1).

commissioner for declarations see the Justices of the Peaceand Commissioners for Declarations Act 1991, section 3.

confirm, a document, means attest or otherwise confirm adocument by signing the document.

copy, of an electronic document, means a reproduction of thedocument in either electronic or hard copy form.

corporation includes—

(a) a corporation under the Corporations Act, section 57A;and

(b) a corporation sole; and

(c) a statutory corporation.

counterpart, for a document, means a copy of the documentthat—

(a) includes the entire contents of the document; and

(b) may be signed by a person without the signatures of theother persons who are to sign the document.

direct, in relation to a document, includes instruct.

director, of a corporation, means a member of the board ofdirectors, council or other governing body of the corporation.



Schedule 1


document means any record of information however recordedand includes—

(a) anything on which there is writing; and

(b) anything on which there are marks, symbols orperforations having a meaning for persons qualified tointerpret them; and

(c) anything from which sounds, images or writings can bereproduced with or without the aid of anything else; and

(d) any record of information that exists in digital form andis capable of being reproduced, transmitted, stored orduplicated by electronic means.

electronically sign, a document, means sign the documentusing a method—

(a) that identifies the signatory for the document and thesignatory’s intention in relation to the contents of thedocument; and

(b) that is either—

(i) as reliable as appropriate for the purpose for whichthe document is signed, having regard to all thecircumstances, including any relevant agreement;or

(ii) proven in fact to have fulfilled the functionsdescribed in paragraph (a), by itself or togetherwith further evidence.

electronic document means—

(a) a record of information reproduced from a thingmentioned in definition document, paragraph (c); or

(b) a document of a type mentioned in definition document,paragraph (d).

enduring document means an enduring document under thePowers of Attorney Act 1998.

general power of attorney means a general power of attorneyunder the Powers of Attorney Act 1998 or another law.



Schedule 1


information includes information in the form of data, text orimages.

make, in relation to a document, includes execute.

mortgage means a mortgage under the Property Law Act 1974or another law.

official version, of a document, see section 24(2) and (3).

originating version, of a document, see section 24(4).

registrar of titles means the registrar of titles under the LandTitle Act 1994.

seal, of a corporation, includes a common seal of thecorporation.

secretary, of a corporation, means the clerk, secretary or otherpermanent officer of the corporation.

sign, in relation to an electronic document, includeselectronically sign.

special witness, for a document, see section 5.

statutory corporation means an entity established,incorporated or registered under an Act of the Commonwealthor a State, that is not a corporation registered under theCorporations Act.

witness, a document, includes—

(a) witness the signing of the document; and

(b) for an affidavit or a declaration—administer the affidavitor declaration.

